Citation Nr: 0408649
Decision Date: 04/02/04 Archive Date: 04/16/04
DOCKET NO. 03-19 831 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Newark, New
Jersey
THE ISSUE
Entitlement to a compensable rating for bilateral hearing
loss.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Bradley Cook, Associate Counsel
INTRODUCTION
The appellant is a veteran who served on active duty from
December 1945 to January 1947 and from January 1951 to
January 1955. This matter comes before the Board of
Veterans' Appeals (Board) on appeal from a March 2003 rating
decision of the Department of Veterans Affairs (VA) Regional
Office (RO) in Newark, New Jersey, which granted service
connection for bilateral hearing loss, rated noncompensable.
The veteran testified at a Travel Board hearing before the
undersigned at the RO in March 2004; a transcript of the
hearing is of record. During the hearing, the undersigned
granted a motion to advance the case on the Board's docket
due to the veteran's advanced age.
The veteran has filed a claim for a total disability rating
based on individual unemployability. As this claim has not
yet been the subject of a rating decision, the Board has no
jurisdiction to consider it. It is referred to the RO for
appropriate action.
This appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify you if
further action is required on your part.
REMAND
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA), codified at 38
U.S.C.A. §§ 5102, 5103, 5103A, 5107. Regulations
implementing the VCAA are published at 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326(a). The VCAA applies in the instant
case. In Quartuccio v. Principi, 16 Vet. App. 183 (2002) the
United States Court of Appeals for Veterans Claims (Court)
provided guidance regarding notice requirements under the
VCAA. Here, a Statement of the Case (SOC) properly provided
notice on the "downstream" matter of the rating for the
hearing loss. VAOPGCPREC 8-2003 (Dec. 22, 2003)
At a personal hearing before the undersigned in March 2004,
the veteran asserted that his hearing loss has increased in
severity since his last VA audiological evaluation in January
2003. At the January 2003 examination, audiometric studies
indicated he had Level III hearing in both ears. The Board
notes that if the veteran's hearing loss has increased to
Level IV in either ear, he would be entitled to a compensable
rating under 38 C.F.R. § 4.85, Diagnostic Code 6100.
Furthermore, although the veteran noted ongoing VA treatment,
the claims file contains only records of treatment through
June 2002. In light of the allegations of increased
disability and the likelihood that pertinent VA medical
records (which are constructively of record) have not been
associated with the claims file, further development,
including another VA examination, is indicated.
Accordingly, this case is REMANDED to the RO for the
following:
1. The RO should obtain complete copies
of any private or VA clinical records
(not already associated with the claims
file) of any treatment the veteran has
received for his bilateral hearing loss
since June 2002. He should assist in
this matter by identifying all sources of
treatment and providing any necessary
releases.
2. The RO should then arrange for the
veteran to be afforded an audiological
evaluation (with audiometric studies) to
determine the current severity of his
hearing loss. The veteran's claims
folder must be available to the examiner
for review in connection with the
examination. The examiner should explain
the rationale for any opinion given.
3. The RO should then re-adjudicate the
claim in light of all evidence added to
the record since their last previous
review. As the claim for increase is an
appeal from the initial rating assigned,
the possibility of staged ratings should
be considered. Fenderson v. West, 12
Vet. App. 119 (1999). If the benefit
sought remains denied, the RO should
issue an appropriate Supplemental SOC and
provide the veteran and his
representative the opportunity to
respond. The case should then be
returned to the Board for further
appellate review, if otherwise in order.
The purposes of this remand are to provide adequate notice
and to compile all evidence necessary to decide this claim.
No action is required of the appellant until he is notified.
He has the right to submit additional evidence and argument
on the matter the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim
must be afforded expeditious treatment by the RO. The law
requires that all claims that are remanded by the Board for
additional development or other appropriate action must be
handled in an expeditious manner.
_________________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).